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05.17.10

FFII and End Software Patents (ESP) Respond to Enlarged Board of Appeal (EBoA) Regarding Software Patentability

Posted in Europe, Law, Microsoft, Patents at 4:35 am by Dr. Roy Schestowitz

Anti software patents
India too is fighting against software patents

Summary: Responses to a referral which was intended to help determine whether or not software algorithms should be patentable in Europe

THE output of the Enlarged Board of Appeal (EBoA) was covered here 3 times last week [1, 2, 3], but we have found no formal statement from the FFII, until now (full press release appended at the bottom):

Brimelow Referral on software patents dismissed: ‘time for the legislator to take over’

Munich, 13 May 2010 — The highest appeal chamber of the European Patent Office, the Enlarged Board of Appeal (EBoA), has decided on patents for computer programs. The questions on point of law from President Brimelow were decided to be “inadmissible” under Article 112(1)(b) EPC. It chided the President for bothering the board with her questions. For such requests Alison Brimelow was recommended to ask her legal staff.

The FSF-funded End Software Patents (ESP) initiative calls it a “good result”:

An unexpected, good result: after more than a year and a half of review (referral G3/08), the EPO’s Enlarged Board of Appeal has declared that the four questions posed were all inadmissible. The patent office is thus does not have the power to decide for itself whether or not software should be patentable.

Here is IDG’s coverage (not IDG in Europe) and the post which Groklaw chose as its reference analysis:

If you believe that no news is good news, then 3/08 is wonderful news because the 61-page decision found the referral inadmissible and, therefore, declined to reach the merits. It’s an interesting (if non-committal) read, and some of the questions raised are fascinating. Consider the following: “Must a claimed feature cause a technical effect on a physical entity in the real world in order to contribute to the technical character of the claim?” Great question–but the EPO Enlarged Court of Appeal declined to consider this one and all of the others.

The decision in Europe is very important because it represents an attempt to expand software patents beyond the United States (and Japan, among perhaps a few more countries). It’s an attempt to change the tide in the same way that the DMCA broke loose after heavy lobbying from Hollywood. Europe is a key checkpoint to them, but it’s a tough nut to crack because Europe cannot be blackmailed, unlike poorer regions.

The following video from Taiwan (May 2005) shows Richard Stallman theorising that Microsoft is trying to pass software patents in other countries before litigiously attacking Linux in order not to reduce the chances of legalising software patents (Germany has just approved the FAT patent from Microsoft and it affects the EU-based TomTom).


Here is the audio version of this talk.

Skip to 1(hr):25(min) to hear Stallman talk about Microsoft and software patents. As mentioned earlier today, Stallman also notes that Microsoft is a criminal company that was convicted 3 times and should therefore not be supported by governments. All in all, this is a very good delivery without interruptions or awkward pauses. It is calm and well focused.


Brimelow Referral on software patents dismissed: “time for the legislator to take over”

Munich, 13 May 2010 — The highest appeal chamber of the European Patent Office, the Enlarged Board of Appeal (EBoA), has decided on patents for computer programs. The questions on point of law from President Brimelow were decided to be “inadmissible” under Article 112(1)(b) EPC. It chided the President for bothering the board with her questions. For such requests Alison Brimelow was recommended to ask her legal staff.

The EBoA also looked into the substance but felt not competent to define a key term as “technical”. The board prefers a legislator to decide patentability of computer programs: “…a presidential referral is not admissible merely because the European Parliament and Council have failed to adopt a directive on CII patenting …When judiciary-driven legal development meets its limits, it is time for the legislator to take over”.

FFII welcomes the spirit of the decision. “The European Parliament should now ask for a new directive for harmonization. Five years ago the European Commission and leading members of the European Parliament suggested that”, explains FFII president Benjamin Henrion.

“The referral was overshadowed by institutional politics”, adds André Rebentisch, the FFII general secretary. “The Board had to reject it for formality reasons, as recommended by Prof. Joseph Straus. Still I found the initiative of Alison Brimelow very fruitful. She restarted a technical debate over patenting rules for computer programs. The amount, diversity and quality of the third party statements, together with the length of the final decision are telling. We ought to continue a broad and open exchange of views.”

Links

Opinion of the Enlarged Board of Appeal and press release by the EPO:
http://www.epo.org/topics/news/2010/20100512.html

FFII Page about the Referral on the question of software patents (G03/08):
http://www.ffii.org/EPOReferral

Third party statements on G03/08 (Amicus Curiae Briefs):
http://www.epo.org/patents/appeals/eba-decisions/pending/briefs.html

Hartmut Pilch comments for the EUPAT WG:

http://eupat.ffii.org/10/05/eba/

Permanent link to this press release:
https://press.ffii.org/Press%20releases/Brimelow_Referral_dismissed

Contact

Benjamin Henrion
FFII Brussels
+32-484-56 61 09 (mobile)

bhenrion at ffii.org
(French/English)

About FFII

The FFII is a not-for-profit association registered in twenty European countries, dedicated to the development of information goods for the public benefit, based on copyright, free competition, open standards. More than 1000 members, 3,500 companies and 100,000 supporters have entrusted the FFII to act as their voice in public policy questions concerning exclusion rights (intellectual property) in data processing.

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